EVIDENCE NOTES7

Chapter 11: The Confrontation Clause I. CONFRONTATION CLAUSE: In all criminal cases, the accused shall enjoy the right to confront the witnesses against him. a. Criminal—does NOT apply in civil cases b. Right possessed by accused: i. NOT going to be obstacle if D wants to admit evidence against the government ii. ONLY where evidence is being admitted against the criminal government Maryland v. Craig (1990): a. Facts—allegation of sexual abuse by 6 year old child against the owner of child‟s school i. How do you accommodate means of a very sensitive witness and accused‟s right of confronting their accuser?? ii. More comfortable relying on statements if made in court; under oath; subject to cross examination b. Problems with child testifying: i. Psychological effect on child ii. Child will clam upminimizes ability of prosecution [if child can‟t testify will have no case because usually limited to victim and D] c. Balanced against accused‟s right to confront and cross-examine the accuser: child could be untruthful deliberately or because confused d. RULE: Face to face confrontation has been a right until nowthen it was found to be a preference, which will yield to an important public policy/principle [will NOT yield lightly] e. Safeguards imposed by court—how does court determine that public policy outweighs the preference to fact to face confrontation i. Individualized, Particularized Finding—another interest involved, NOT a legislative presumption 1. Judge makes individualized, particularized finding 2. Judge must examine evidence and determine that child will suffer serious emotional trauma and/or witness will become unable to testify [prosecutor won‟t have any evidence at all] 3. Usually there will be a pre-trial hearing and judge makes decision based on expert opinions; child will also make an appearance [D won‟t be present] ii. Child is NOT present in court room: 1. Requirements: a. Child is under oath b. Subject to cross examination [by attorney who is in contact with D] c. Jury has opportunity to examine the demeanor of child [through video] 2. Present with child at a minimum are prosecutor and defense attorney [D is NOT present…result of testimony face to face with D, but D in electronic communication with attorney]attorney is NOT equipped to cross examine without knowing what D thinks about testimony [usually one-way transmission technology] 3. 2nd best to having child testify in court iii. Finding that emotional trauma is so severe that it is essentially the same result as the child being UNAVAILABLE… 1. Some states have provisions for age limits 2. Some provisions for developmentally disabled or mentally ill of any age Bruton v. US (1968): a. Facts—Evans made post arrest statement to police that „Yeah, B and I did it‟…both on trial together i. Problem with admitting: both on trial together 1. Post-arrest statement—strong interest in minimizing culpability and helping police by passing the blame 2. Problem is reliability when offered against co-D = person making statement is NOT on the stand [5th Amendment immunity] ii. Solution—give a limiting instruction 1. Fed. R. 109—court shall restrict evidence to proper scope and instruct jury accordingly II. III. IV. V. 2. Advise jury that E‟s confession is competent and admissible against E, but NOT against B and they should NOT consider 3. Found E‟s statement was NOT allowed to be permitted under 5 th Amendment a. Retried and found E NOT guilty [acquitted], while B still had a conviction! b. Attorney GeneralWhile E was acquitted, seems that jury did NOT follow the limiting instruction b. RULE: Can NOT admit a co-D‟s out-of-court confession against that co-D and rely on limiting instruction [NOT reliable in this context] i. Confessions are REALLY power evidence and impossible for jury to forget this kind of evidence ii. Criminal Co-D confession = limiting instruction is ineffective iii. NO opportunity to cross-examine, so NO opportunity to investigate [D can NOT testify] c. If prosecutor and have both E and B on trial: prosecuting case involving post-arrest confession by co-D i. Redact Statement—if possible to change statement and completely take D [non-confessing] out of it ii. Separate Trials—call all witness twice and present evidence twice [risk of inconsistent verdicts] iii. Separate Juries, Same Trial—problem of inconsistent verdicts iv. Do NOT use the statement—prosecutor will NOT want to forgo confession Crawford v. Washington (2004): a. Facts—D accused of attempted murder [defense is self-defense]…post-arrest statement by D‟s wife after she had been Mirandized and chose NOT to testify against her H i. Statement offered against her H and question of whether it violated the Confrontation Clause ii. Mattocks [1880s]—recognition that Confrontation Clause does NOT always stop introduction of HS into evidence iii. 1980s…Admit any HS if can satisfy 2 prong test [doesn‟t really restrict anything] 1. Unavailable 2. Testimony is reliable [Admissible HS always has indicia of reliability] b. Confrontation Clause—addressed again and COMPLETELY abandoned this 2-prong test!! CC was meant t prohibit ex-parte testimonial statements [offering pre-trial statements of witnesses] c. TEST: i. Is statement testimonial?? [If NOT testimonial HS, it is the end of CC analysis] ii. If it is…is the witness unavailable?? iii. Whether there has been a prior opportunity for D to cross-examine the witness?? d. RULES: i. CC does NOT limit HS generally, ONLY limits testimonial HS [ex-parte criminal hearing; statements made by wife because they were made with eye toward litigation (do NOT know if it has to be the government‟s purpose or declarant‟s)] 1. Post-arrest police interrogation [if involves hearsay] = TESTIMONIAL 2. NOT business records 3. CC is NOT guarantee of reliability for HS ii. UNLESS D has prior opportunity to cross examine the witness [if D has opportunity to cross examine the witness, then it is NOT testimonial evidence or in violation of the CC] e. Court does NOT define testimonial HS: i. Wife arrested and statement made after being Mirandized = eye toward litigationtestimonial HS, therefore NOT allowed as in violation of CC ii. 911 call?? Don‟t know… iii. Spontaneous statement made by officer responding to call at crime scene?? Don‟t know… PROBLEMS: a. 11-1: E, Me, Mi were released from prison…they returned to illegal business of importing narcotics and were caught 2nd time…wiretaps revealed E declaring, „Way to go Me and Mi! This plan to bring in cocaine will work this time.” 3 brothers tried separately…prosecution offered E‟s statement against Me as admission of co-conspirator…the arresting officer who overheard the wiretap testified regarding the statement…Me objected, claiming that there was no showing by prosecution that declarant, E, was unavailable to testify i. Prosecutor is NOT required to show declarant is unavailable, NO longer the test under Crawford…may have been required under Ohio v. Roberts [issue is NOT availability…but it is testimonial] 1. Government is NOT involved with production of statement and it is VERY unlikely that there were going to make with eye toward litigation: NOT likely testimonial!! 2. Co-conspirator statements usually are NOT in conflict with CC ii. What if E had said to police upon being apprehended, „So we did it, you can‟t pin it on us.‟ Could prosecution offer this statement against E in joint trial with Me and Mi?? 1. Admissible against E as his own admission 2. NOT admissible against Mi and Me because no longer satisfies co-conspirator requirements because it is post-arrest a. Bruton teaches us that you can‟t offer if trying together even with limiting statement [too prejudicial] b. Option of using against Me and Mi [joint trial]: can‟t redact i. Separate trials ii. Separate juries iii. Forgo the statement b. 11-2: JF indicted for masterminding a car theft ring…in preliminary hearing, T testified about the car theft operation. At trial, T failed to appear despite a subpoena instructing her to do so…if prosecution offer‟s T‟s preliminary hearing transcript in evidence as former testimony at trial, will transcript meet requirements of CC?? i. Crawford: 1. TESTIMONIAL = ex parte statement created with eye toward litigation 2. Prior opportunity to cross-examine?? Assuming there was the opportunity…however the motivation is very different a. At trial the verdict is going to be reached v. preliminary hearing determines whether there is probable cause for D to stand trial i. D attorney use as discovery, but NOT to turn case in their own favor ii. Opportunity to cross examine, but NOT much motive to do so ii. May meet requirements of CC [but preliminary hearing is very different than criminal trial]…previous criminal trial testimony probably OK even if NO cross examination because same motivation: 1. If D did NOT cross examineD attorney should raise Crawford exception…motive was so different, that should NOT be used as waiver of D‟s right to confront at trial 2. If cross examination was madewill NOT likely be in violation of CC c. 11-3: J, age 5, tells her mother that „the man next door did stuff to me before.‟ J‟s mother then took her to a child psychologist who examined and interviewed J. If a neighbor, JB, is subsequently charged with various crimes of child sexual abuse against J, can J‟s mother and doctor testify about J‟s statements to them? i. J‟s statement to mother: 1. 803(4) statement for medical diagnosis/reliability…guarantee of reliability is that person will be making treatment [problem is that child would NOT know this] = usually does NOT work, but could use residual exception 807, child would not know this happened unless it really happened to them [indicia of reliability] 2. NOT testimonial: child isn‟t anticipating trial…very different than ex-parte pre trial statements taken at arms of government to secure testimony a. Good argument that this is NOT in conflict with CC b. Neither are thinking about prosecution [mother or daughter] v. government agent interrogating for „great evidence‟ ii. J‟s statement to doctor: 1. 803(4) better shot at getting that in…whether child would appreciate accuracy of statement that depends uponhowever, if can‟t get it in would come in under 807 residual exception 2. Stronger argument that testimonial: a. Does psychologist regularly work with prosecutors? b. Prosecutors recommend this psychologist? c. Told to save information for trial [more like testimonial…ex part statement made with eye toward litigation]? d. Or dos doctor only deal with problems [less like testimonial]? iii. Md. v. Craig—child should be permitted to testify outside the physical presence of the D as long as… 1. Images broadcast into court room [examine the child‟s demeanor] 2. Defense is able to cross examine with no restrictions 3. Defendant is in communication with attorney 4. Child is under oath d. 11-4: M is eyewitness to stabbing outside of NM tavern…at time of stabbing, M exclaimed, “Look, R just stabbed P after P punched him!‟ R is prosecuted for the stabbing. M is available to testify, but prefers not to do so. Can someone who heard M‟s statements testify to it without violating R‟s CC rights? i. RULE: CC is NOT guarantor of reliability, but protect right of D to cross-examine witnesses… ii. Crawford: 1. Is statement testimonial? [If NOT testimonial HS, it is end of CC] 2. If it is…whether witness is unavailable? 3. Whether there has been prior opportunity for D to cross examine? iii. 803(2) excited utteranceNOT likely that excited utterance was testimonial…NOT made with eye toward litigation [end CC questions] e. 11-5: N confesses to ATM robbery and shooting of doctor coming off of a late shift at the Hospital. N stated, „B and I though we would just get some easy money; no one was supposed to get hurt, honest‟N and B are jointly tried in state court for the robbery and shooting…N‟s confession is offered by the prosecution against N alone…the prosecutor informs the judge that she would NOT oppose the judge giving the jury a limiting instruction on the evidence…the limiting instruction would inform the jury that the confession is being admitted solely against N and should NOT be used at all against B i. N chooses NOT to testifypost arrest statements = testimonial…under Bruton, if N chooses NOT to testify, a limiting instruction is NOT sufficient because juries can NOT discharge confession from their minds 1. CC guarantees the testing of testimonial statements by crucible of cross-examination statements 2. Violation of CC ii. If N does choose to testify = admissible ONLY against N, remains inadmissible against B [still entitled to limiting instruction]ISSUE spotting… 1. Now have cross-examination = deals with Crawford CC problem, but Bruton problem still exists [likely should NOT come in] 2. Still have statement that is NOT admissible against one co-D and problem that jury will NOT be able to discharge statement even with limiting instruction!! f. 11-6: C was brutally beaten during her afternoon jog…approximately one week after the beating, C left the hospital and identified B as her attacker in a lineup at the police station…B is tried for the beating almost 2 years after it occurred…if C can no longer identify B as her attacker, will the admission of the line-up identification violate B‟s CC rights?? NO801(d)(1)(C), prior identification where testifying witness is declarant…solves the cross-examination issue because they are on the stand!! g. 11-7: J‟s twin sister was allegedly sexually abused by her stepfather…in his criminal trial on charges of child molestation, can the prosecution of the sister‟s videotaped deposition instead of her live testimony?? FORMER TESTIMONY i. Declarant must be unavailable to testifyso emotionally traumatic to child that they are unavailable to testify [source of trauma is testimony in presence of D] = 804(a)(4) ii. Prior deposition = has to be at least opportunity to cross-examine…can ONLY be admitted as former testimony and Crawford requires similar opportunity to cross-examine 1. Opportunity and similar motive to cross-examine 2. Deposition admitted as former testimony [805(b)(1)]to comply with that provision and CC = requires opportunity to cross examine by D!